Karnataka High Court
N.G. Puttaswamy vs The Tahsildar And Returning Officer And ... on 26 September, 2007
Equivalent citations: ILR2007KAR4728, 2008(3)KARLJ98, 2008 (1) AIR KAR R 13
Author: N.K. Patil
Bench: N.K. Patil
ORDER N.K. Patil, J.
1. In the instant case, petitioner has prayed to call for the relevant Lower Court records as well as the ballot boxes containing voted ballot papers of the election, which was held on 29th August 2005 for the directorship of the second respondent - APMC and pass an order for recounting the same and declare the election result in accordance with law and alternatively declare that, the respondent No. 1 has not properly prepared and complied with Form Nos. 22 and 23 strictly in terms of Rules 35 and 37 of the Rules and to declare that, respondent No. 3 returned candidate with respect to the Anagodu APMC constituency No. 9 declared by first respondent as void and also to declare that, the petitioner has been duly elected for Anagodu APMC constituency No. 9 and thereby setting aside the judgment and decree dated 23rd February 2006 passed by the Civil Judge (Jr.Dn.) at Davanagere in Ele Misc.4/2005 vide Annexure-O.
2. The grievance of petitioner in the instant writ petition is that, petitioner and respondent Nos. 3 to 5 have contested the election which was held on 29th August 2005 for the post of Director to the Agricultural Produce Marketing Committee - second respondent. The result of the said election was announced by the Returning Officer for the said constituency on 31st August 2005. Assailing the correctness of the declaration of the result of the election to the constituency where the petitioner and respondents 3 to 5 contested the election for the post of Director of APMC, petitioner herein has filed the election petition in Election Misc. No. 04/2005 on the file of the Principal Civil Judge (Junior Division), Davangere and the said matter had come up for consideration before the Trial Court on 23rd February 2006. The Trial Court, after hearing both parties, through their respective counsel and after considering the oral and documentary evidence and other relevant material available on file, dismissed the petition filed by petitioner by assigning cogent reasons. Being aggrieved by the order passed by the Trial Court in the aforesaid election miscellaneous petition vide Annexure-O, referred above and seeking appropriate reliefs, as stated supra, petitioner herein felt necessitated to present the instant writ petition.
3. The principal submission canvassed by learned counsel for petitioner is that, the preliminary objection raised by learned counsel for third respondent is not sustainable and the same is liable to be rejected at the threshold itself. To substantiate the said submission, learned senior counsel appearing for petitioner submitted that, in the instant case, after hearing, when this Court issued rule on 9th October 2006 and ordered to post the case for hearing in the usual course, at that stage, learned counsel appearing for third respondent did not raise such an objection and therefore, now, it is not open for him to raise the said objection regarding maintainability of the writ petition, on the ground that, petitioner has got an alternative remedy of filing a statutory appeal as provided the relevant provisions of the APMC Act and Rules. Therefore, he vehemently submitted that, since rule has been issued as long as during 2006 in the instant case, learned counsel for third respondent is not entitled and justified to make such preliminary objection regarding maintainability of the writ petition at this stage. Therefore, to substantiate the said submission, he placed reliance on the judgment of the Apex Court reported in Radha Raman Samanta v. Bank of India and Ors. and another judgment reported in Durga Enterprises (P) Ltd. and Anr. v. Principal Secretary, Government of Uttar Pradesh and Ors. (2004) 13 Supreme Court Cases P.665. Further, he placed reliance on another judgment (in Annamalai Mudaliar's case) and submitted that, if the ratio of law laid down by the Apex Court in the aforesaid cases are taken into consideration, the objection raised by learned counsel for third respondent is liable to be rejected at the threshold itself. Further, he has taken me through the stand taken by first respondent in their statement of objections and drew my specific attention to paragraph 4 and submitted that, prima facie, it establishes that, the details as to the number of ballot papers received and number of ballot paper missing etc. have not been looked into nor considered by the Trial Court and therefore, this Court can exercise its extraordinary jurisdiction and interfere in the impugned order vide Annexure-0 passed by the Trial Court. However he fairly submitted that, there is no dispute regarding the statutory provision as envisaged under Section 26 of the APMC Act for preferring an appeal against the order passed by the Trial Court. Further, he submitted that, when this matter had come up for consideration, this Court after hearing, has issued rule and therefore, at this stage, raising the preliminary objection that, there is appeal provision under the Act, by learned senior counsel appearing for third respondent is not justifiable and the said objection is liable to be over-ruled and the matter is liable to be decided on merits.
4. Per contra, learned senior counsel appearing for third respondent, inter alia, contended and submitted that, the writ petition filed by petitioner is liable to be dismissed as not maintainable at the threshold itself. To substantiate the said submission, he vehemently submitted that, it is not in dispute that, petitioner had approached this Court earlier in W.P. No. 21097/2005, immediately after declaration of the result of the election, as referred above, in which petitioner and respondent Nos. 3 to 5 had contested and the said writ petition was dismissed with liberty reserved to petitioner to redress his grievance before the competent authority as envisaged under the mandatory provisions of the APMC Act and Rules, if he was so advised. Further, it was observed that, if petitioner redresses his grievance before the competent authority, the same may be disposed of as expeditiously as possible, after affording an opportunity to all the parties. After the said writ petition was disposed of with liberty reserved to the petitioner, petitioner has redressed his grievance before the appropriate competent authority, as envisaged under the relevant provisions of the APMC Act and Rules by filing necessary petition in Ele. Misc. No. 4/2005 on the file of the Trial Court and the Trial Court after conducting thorough trial and after appreciation of oral and documentary evidence and other material available on file has rejected the said petition. Once petitioner has invoked the statutory provision as envisaged under the relevant provisions of the Act and Rules, it is not now open for him to come up before this Court, invoking the extra ordinary jurisdiction, without exhausting the statutory appeal remedy provided under Section 26 of the Act. Hence, on this ground alone, the writ petition filed by the petitioner is liable to be dismissed at the threshold itself. Further, he submitted that, even if rule is issued, question of law can be raised at any stage and there is no bar for third respondent to take preliminary objection regarding maintainability of the writ petition, at this stage. To substantiate the said submission, he placed reliance on the judgment of the Constitution Bench of the Supreme Court reported in Syed Yakoob v. K.S. Radhakrishnan and Ors. and submitted that, if the ratio of law laid down by the Apex Court in the said decision is taken into consideration, the Courts exercising the supervisory jurisdiction is not entitled to act as an appellate Court and this limitation necessarily means that, findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings, except an error of law, which is apparent on the face of the record, but not an error of fact, however, grave it may appear to be. Further, he submitted that, 'In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Therefore he submitted that, petitioner has got the remedy of preferring a statutory appeal under Section 26 of the Act and therefore, he cannot invoke the extra ordinary jurisdiction as envisaged under Article 226 of the Constitution of India nor this Court can exercise its jurisdiction and consider the questions of fact involved in this case. Further, he placed reliance on the decision of this Court reported in I.L.R. 2002 Kar. 2289 and submitted that, the argument of the learned senior counsel for petitioner that, if once case is admitted, it cannot be dismissed on ground of maintainability, is not tenable in the facts and circumstances of the case and also for the reasons referred in the order passed by Trial Court. Further, he placed reliance on another judgment of the Apex Court reported in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. and submitted that, regarding the maintainability of the writ petition under Article 226 of the Constitution of India, the Apex Court has held that, the alternative remedy would not operate as a bar in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the instant case, it is not the ground taken by petitioner that, any of the three aspects are involved in this case. Therefore, he submitted that the instant writ petition filed petitioner is liable to be dismissed as not maintainable.
5. Learned Additional Government Advocate appearing for first respondent submitted that, the writ petition filed by petitioner cannot be entertained as the petitioner has not made out good grounds for exercising the extra-ordinary jurisdiction as envisaged under Articles 226 and 227 of the Constitution of India. Further, he submitted that, petitioner has got a speedy, inexpensive, alternative and efficacious remedy as envisaged under the statute and the ground urged by the petitioner is purely mixed questions of fact and law and that, the same has to be considered only after appreciation of oral and documentary evidence and other relevant material available on file. When petitioner has got an alternative remedy of assailing the correctness of the impugned order vide Annexure-O, he cannot maintain the instant writ petition and hence, the same is liable to be dismissed as not maintainable.
6. Having heard learned counsel for petitioner and learned counsel for respondents and, after careful perusal of the relevant provisions of the APMC Act and Rules, it is manifest on the face of the material available on file that, it is undisputed that, petitioner in fact had earlier filed writ petition before this Court and the same was dismissed as withdrawn reserving liberty to petitioner to redress his grievance before the appropriate competent authority, as envisaged under the relevant provisions of the APMC Act. Accordingly, petitioner has invoked Section 26 of the said Act and challenged the validity of the result of the election declared by the Returning Officer. However, it is not in dispute that, petitioner in fact, has got a speedy, inexpensive, efficacious and alternative remedy as provided under the statute under Section 26 of the said Act, wherein it is stated that, "Any person aggrieved by any decision or order of the Munsiff under Section 20, 21, 22, 23 or 25, may within thirty days from the date of such decision or order, appeal in the prescribed manner to the District Judge within whose territorial jurisdiction the market yard of the market area concerned is situate. The decision of the District Judge on such appeal shall be final and conclusive....". Therefore, when the statute it self has provided for preferring a statutory appeal against the impugned order, petitioner has not chosen to exhaust the said alternative and efficacious remedy available, on the other hand, has approached this Court, by presenting the instant writ petition, invoking the extraordinary jurisdiction of this Court. In view of the well settled principles of law laid down by the Apex Court in host of judgments, petitioner has failed to exhaust the statutory remedy and rushed to this Court and presented the instant writ petition. Hence, the writ petition filed by petitioner cannot be maintained without exhausting the statutory remedy available to him under the statute, as rightly pointed out by learned counsel appearing for third respondent, by placing reliance on the judgment of the Apex Court reported in Syed Yakoob v. K.S. Radhakrishnan and Ors. wherein, it is held that, the question about the limits of jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by the Apex Court and the true legal position in that behalf is no longer in doubt. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. If the said proposition of law laid down by the Constitution bench of the Apex Court is taken into consideration and applied to the facts and circumstances of the case on hand, it can safely be said that, petitioner has not made out a case to establish that, the impugned order passed by the Trial Court results in non compliance of principles of natural justice nor is it pointed out that, the order passed by the Trial Court is one without jurisdiction. If that is so, when the petitioner has got statutory provision as envisaged under Section 26 of the APMC Act, he has not exhausted the said remedy before the appellate court. Further, on the basis of the material available on record, it is not in dispute that, it is apparent on the face of the record that, the subject matter involved in this case is purely mixed question of fact and law and that, the same has to be decided only by the Trial Court, after appreciation of oral and documentary evidence and other relevant material available on file. This Court cannot exercise its extraordinary jurisdiction to go into those aspects of the matter, when the statutory provision is very much available. Therefore, the preliminary objection raised by learned counsel for respondents is very much sustainable and the writ petition filed by petitioner is liable to be dismissed as not maintainable on the ground that, petitioner in fact, has got an inexpensive, efficacious and effective remedy of redressing his grievance before the competent authority in pursuance of the order passed by the Trial Court.
7. Regarding the reliance placed by learned senior counsel appearing for petitioner in Radha Raman Samantha's case reported in (2004) 1 Supreme Court Cases P.605, there is no dispute with regard to the well settled law laid down in the said judgment, wherein, the writ petition filed by petitioner has been decided in his favour but opposite party has filed the appeal before the Division Bench and the Division Bench has reversed the said decision, on the ground that, instead of filing a writ petition, the claimant ought to have sought the remedy under Industrial Disputes Act. The question of alternative remedy not having been raised on the earlier occasion, the Apex Court held that, the Division Bench ought not to have gone into the question of maintainability of the writ petition. Admittedly, the dispute for consideration in the said case was enforcement of fundamental rights whereas, in the case on hand, the dispute is regarding the declaration of election result to the post of Director to second respondent - APMC. Therefore, as held by the Apex Court as early as in the year 1988 in Whirlpool Corporation's case, as referred above, the reliance placed by learned counsel appearing for petitioner is unfortunately of no assistance to him in the instant writ petition nor the same is applicable to the facts of the case on hand.
8. Regarding another decision relied upon by learned counsel for petitioner in case of Durga Enterprises reported in (2004) 13 Supreme Court Cases P. 665, it can be seen that, the Apex Court has held therein that, the High Court having entertained the writ petition in which pleadings were also complete ought to have decided the case on merits instead of relegating parties to a civil suit. But, in the said case, the petition was pending before the said Court for long period of thirteen years and at that stage, it was held that, the High Court was not justifiable in directing the party to redress his grievance before the competent Civil Court. The dispute between the parties in the said decision was regarding the right of re-entry on the disputed property in accordance with sub-rules (2) and (3) of Rule 5 of the Land Acquisition (Companies) Rules, 1963 and the said Rules contain a mechanism for adjudication of a dispute relating to the alleged breach of terms of the agreement and the manner in which it is to be resolved. The said judgment of the Apex Court is on the basis of the fact that, the matter was entertained and thereafter pending before the High Court for nearly thirteen years and therefore, the Apex Court came to the conclusion that, the High Court ought to have decided the case on merits instead of relegating the parties to a civil suit. But, in the instant case, the dispute is regarding the declaration of result to the post of Director to second respondent - APMC and under the relevant provision of the statute, petitioner has been provided with the statutory provision for appeal before the appellate authority, that too before the jurisdictional District Court. Therefore, the ratio of law laid down by the Apex Court in the said decision cannot be made applicable to the facts and circumstances of the case.
9. Having regard to the facts and circumstances of the case, as stated above, taking into consideration the totality of the case on hand and the relevant provisions of the statute, as referred above, it is an admitted fact that, petitioner has got an inexpensive and speedy remedy of preferring an appeal before the competent authority as envisaged under the relevant provisions of the APMC Act and Rules and that, the said remedy has not been exhausted by petitioner. Therefore, I am of the view that, the writ petition filed by him is liable to be dismissed as not maintainable. Consequently, the preliminary objection raised by learned counsel appearing for third respondent sustains and is upheld and the writ petition filed by petitioner is liable to be dismissed as not maintainable. Accordingly, the writ petition is dismissed, reserving liberty to petitioner to redress his grievance before the competent authority, as provided under the relevant provisions of the statute, if he is so advised or if need arise. Ordered accordingly.